South African Law Journal - Volume 131, Issue 4, 2014
Volume 131, Issue 4, 2014
Source: South African Law Journal 131, pp I –XLI (2014)More Less
Author Sieg EiselenSource: South African Law Journal 131, pp 729 –740 (2014)More Less
Summary judgment is a drastic and harsh remedy, as it deprives defendants of the opportunity to defend themselves against a claim that has been lodged against them. The remedy is very often invoked in credit agreements where the debtor has defaulted on the credit agreement without any proper excuse. It provides creditors an opportunity to obtain judgment where the defence raised by the defendant has no real chance of success and is raised merely for dilatory purposes or to frustrate the creditor. Courts have since an early stage applied the requirements of Rule 32(2) of the Uniform Rules of Court quite strictly due the drastic nature of the remedy, but have also done so realistically (see Fischereigesellschaft Busse & Co Kommanditgesellschaft v African Frozen Products (Pty) Ltd 1967 (4) SA 105 (C) at 111A-B and Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423B-H). The Maharaj case (supra) remains the locus classicus in this regard.
The doctrine of separation of powers and interim interdict cases involving the state : National Treasury v Opposition to Urban Tolling Alliance : notesAuthor Ngwako RaboshakgaSource: South African Law Journal 131, pp 740 –755 (2014)More Less
The Constitutional Court's judgment in National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) ('OUTA') raises vital questions about the extent to which the separation of powers doctrine influences the adjudication of interim interdict applications against the state. In this case, the Constitutional Court held that the common-law test for the granting of an interim interdict must be adapted to give effect to the constitutional principle of the separation of powers. In doing so, it developed a highly deferential approach to adjudicating interim interdict cases against the state. After OUTA, it seems that interim interdicts against organs of state will be granted only in very narrow circumstances.
Should the court look at the best interests of specific children in abduction cases? An examination of Central Authority of the Republic of South Africa v JW and HW with C Du Toit Intervening : notesAuthor C.M.A. NicholsonSource: South African Law Journal 131, pp 756 –768 (2014)More Less
Central Authority of the Republic of South Africa v JW and HW with C du Toit Intervening (unreported case no 34008/2012, North Gauteng High Court, Pretoria, 6 May 2013) relates to the emotive field of international parental child abduction. This matter is regulated by the provisions of the Hague Convention on the Civil Aspects of International Child Abduction of 1980 ('the Convention'), which was incorporated into domestic South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 and was subsequently repealed and replaced by s 313 of the Children's Act 38 of 2005. The whole of the Convention is now incorporated into the Children's Act itself in chapter 17. The applicant, the Central Authority of the Republic of South Africa (the Chief Family Advocate or her or his designate: see s 277 of the Children's Act) launched an application on 15 June 2012 for the peremptory return of three minor children removed from Australia by the first respondent (their mother, 'M') in contravention of the provisions of the Convention. The process was initiated by the Australian Central Authority at the behest of the second respondent (the father of the children, 'F'). Ms C du Toit of the Centre for Child Law at the University of Pretoria was appointed to act for the children.
A comment on the liability regime introduced by section 65 of the Financial Services Law General Amendment Act 45 of 2013 : notesAuthor Herbert KawadzaSource: South African Law Journal 131, pp 768 –777 (2014)More Less
One outcome of the 2007-2009 global financial crisis has been an increased scrutiny of the financial sector's supervisory architecture. The assumption has been that improved supervision will avert future crises by enhancing systemic stability as well as promoting sound and efficient financial systems. (See generally D Alford 'Supervisory colleges: The global financial crisis and improving international supervisory coordination' (2010) 24 Emory International LR 57; see also the UK Financial Services Authority 'Turner Review: A regulatory response to the global banking crisis' available at http://www.fsa.gov.uk/pubs/other/turner_review.pdf, accessed on 20 July 2013.) More specifically, post-financial crisis reforms have focused on the need to evaluate supervisors' market-based accountability and to redefine the boundaries and nature of their liability towards third parties (see for example D Nolan 'The liability of financial supervisory authorities' (2012) 4 Journal of European Tort Law 190; R J Dijkstra 'Liability of financial supervisory authorities in the European Union' (2012) 3 JETL 346).
Author Alan RycroftSource: South African Law Journal 131, pp 778 –786 (2014)More Less
Despite mediation and conciliation being provided for in over forty statutes since 1994, a general culture of mediation has yet to take root in South Africa. The South African Law Reform Commission committed considerable resources, from 1997 to 1999, on several reports under its Project 94 on Alternative Dispute Resolution ('ADR'). However, there has been little tangible benefit. The Commission for Conciliation, Mediation and Arbitration ('CCMA') is the only example of institutionalised and successful conciliation practice. The still to be implemented Court-Annexed Mediation Rules of the Magistrates' Courts reflect a retreat from the initial compulsory mediation process to a system of 'voluntary referral'. One wonders if this is to share the same fate as the yet to be repealed Short Process Courts and Mediation in Certain Civil Cases Act 103 of 1991, which promised an alternative to civil litigation but which was never implemented. Is it simplistic to conclude that there is insufficient political and professional will to effect a transformation of the ways legal disputes are resolved in South Africa?
The South African approach to the rectification of agreements subject to constitutive formalities : one step too many?Author Franziska MyburghSource: South African Law Journal 131, pp 787 –818 (2014)More Less
This article examines the South African approach to the rectification of agreements subject to constitutive formal requirements. It focuses on the rule that such an agreement must first comply with formalities ex facie the document recording it, before a court may consider whether the traditional requirements for rectification have been met. In particular, the primary justifications for this rule are assessed: first, a void agreement cannot be rectified and, secondly, ex facie compliance promotes the functions of formalities. An analysis of South African case law reveals not only that these assumptions are questionable, but that the rule is inconsistently applied and leads to the drawing of tenuous distinctions. A brief investigation of both civilian and common-law approaches suggests further that the South African method is based on a misconception of the purpose of rectification: it conflates the correction of the document recording the agreement with the enforcement of that agreement once it is corrected. This leads to the conclusion that the requirement of ex facie compliance should be abolished as a preliminary step and that a South African court should rather consider whether awarding a claim for rectification would defeat the objects of formalities in general.
Author Andrew KonstantSource: South African Law Journal 131, pp 819 –846 (2014)More Less
The issue of passive investments in competitors remains a challenge in both the fields of economics and law. Economists have long theorised the potential anti-competitive effects of passive investments. Some have gone so far as to claim that without a controlling interest, such investments cannot be anti-competitive. In the recent efforts to consolidate these risks with competition law, particularly the concept of merger control, the EU, through Ryanair's acquisition of a minority interest in Aer Lingus, and South Africa with its comic to-and-fro in the Primedia case, have found the two to be unhappy bedfellows. The reasons for the difficulty in accepting the analysis of passive investments are due to the evidentiary requirements that must be met when attempting to prohibit a merger, and the characteristics of passive investments themselves. The result is that passive investments are better suited to some other part of the Competition Act. However, given the wording in the Competition Act, it may prove to be impossible to find a home in South African competition law for a form of analysis which will be adequate enough to quell the fear of passive investments.
Author Lize MillsSource: South African Law Journal 131, pp 847 –864 (2014)More Less
The concept of the best interests of the child is firmly entrenched in international law, the South African Constitution and South African legislation and jurisprudence. The Committee on the Rights of the Child has recently declared that it is a threefold concept existing as a substantive right, a fundamental interpretative legal principle, and as a rule of procedure. The best interests of the child should be considered, at least, in all matters concerning children. Yet, in the matter of Le Roux v Dey, where three boys were defending a delictual claim of defaming their school vice-principal, the judges of the High Court and the Supreme Court of Appeal, and eight of the ten presiding judges of the Constitutional Court did not even mention the best interests of the child. The article explores some of the possible reasons for this failure and offers some recommendations as to what a more preferable approach would have been in the circumstances.
A critical investigation into prosecutorial discretion and responsibility in the presentation of expert evidenceSource: South African Law Journal 131, pp 865 –882 (2014)More Less
South African prosecutors are encumbered with the responsibility of deciding on the strength of cases before proceeding with criminal litigation. Unfortunately, few guidelines and directives exist to assist prosecutors in the exercise of this discretion, prompting prosecutors to leave important considerations of expert evidence admissibility and reliability to the judicial fact-finder, who is often in no better position to pronounce on the reliability of complicated expert evidence. This article aims to rationalise a greater emphasis on prosecutorial responsibility in the evaluation of expert evidence and the exercise of the discretion to prosecute during the pre-trial stages. The few guiding principles that are available to prosecutors in deciding on the strength of cases based on evaluations of the evidence in case dockets will be reviewed. Additionally, the need for closer pre-trial examination of expert evidence, especially scientific evidence, will be demonstrated. It is argued that prosecutors are generally ill-equipped to make judgements on the reliability of expert evidence, but that it is essential to the ultimate accuracy of fact-finding during trial that prosecutors improve on this role.
Author Eric T. FreyfogleSource: South African Law Journal 131, pp 883 –921 (2014)More Less
Over the century-long period from just before the American Revolution until the end of the Civil War, the United States underwent a profound transformation, beginning with its political break from Britain and expanding rapidly to embrace political and economic liberalism and elements of equality and social justice. Importantly, this transformation was aided by fundamental changes to the received English common law of property. Several property-law changes enhanced economic freedom and facilitated industrialisation. Other legal changes diminished the power of landowners to dominate the poor socially and economically. Yet further reforms stabilised land tenure and expanded easy public access to natural resources on private as well as public lands. Along the way, American courts embraced a more instrumental conception of law and carved out greater space for legislatures to regulate uses of property. Many of these changes involved substantial shifts of wealth, yet none was accompanied by significant compensation. In its transformation, South Africa is differently situated from the US of two centuries ago. Nonetheless, the American record may prove instructive, both in its particulars and as an example of how a developing nation, committed to private property and the rule of law, can nonetheless reform the legal elements of ownership without diminishing the institution's stability and widespread benefits.
Author Gerald FriedmanSource: South African Law Journal 131, pp 922 –925 (2014)More Less
We are gathered here this morning to pay tribute to the memory of a former member of this Bench Jan Hendrik Steyn, who passed away on 30 December 2013. He was appointed a Judge of this court in 1964 and he left the Bench in 1977. In that comparatively short period, he made an impact on the justice system of this country which is still evident today.
Author Jaco Barnard-NaudeSource: South African Law Journal 131, pp 926 –934 (2014)More Less
Carrol Clarkson is widely acknowledged as an authority on the writing of JM Coetzee (See Carrol Clarkson J.M. Coetzee: Countervoices (2009)). In this new work she turns her scholarly attention to the topic of transitional justice and particularly the role of the work of art (literature and the visual arts) in this discourse. The book has been published in Fordham University Press's Just Ideas series. On the website of the series (https://fordhampress.com/index.php/series-imprints/series/just-ideas.html), the objectives of the series are described as follows:
'Since the question of justice is one of human scope, the books in the series will encompass the breadth of humanist scholarship, mixing philosophy, literature, history, politics, and law. In contrast to those who understand law and justice to be simply various ideologies marshalled in the struggle for political power, the authors in this series insist that the idea of justice itself is meaningful for the legal and political activity of building a better and more human world.'
Clarkson's book is well-suited to these purposes, both in terms of its methodology as well as its substance, and both the series editors and the author should be commended for what can only be an invaluable addition to the series.
Author D.M. DavisSource: South African Law Journal 131, pp 934 –938 (2014)More Less
During the endless night of segregation and apartheid, there were at least four works which were devoted to the judiciary and its engagement with the increasing battery of laws which reinforced racist policy and practice: C J R Dugard Human Rights and the South African Legal Order (1978); Hugh Corder Judges at Work (1984); C F Forsyth In Danger for their Talents (1985); and David Dyzenhaus Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (1991).
Tax Law: An Introduction, Beric Croome (Ed.), Annet Oguttu, Elzette Muller, Thabo Legwaila, Maeve Kolitz, R.C. Williams, Cornelius Louw : book reviewAuthor Tracy GutuzaSource: South African Law Journal 131, pp 939 –942 (2014)More Less
The cessation of the publication of the annual Meyerowitz on Income Tax by David Meyerowitz resulted in a gap in the availability of an introductory text to tax law. While there are very good and useful texts on tax law for the tax lecturer, student and practitioner to use, none of them fits quite comfortably in a bag or briefcase. These texts are not portable, being either too large or spanning a few loose-leaf volumes. Secondly, these texts tend to provide the detail and complexity of tax law which are not always suitable as an introductory text. It is this gap for an updated tax law text book that is suitable for use as introductory text or as a first port of call which Tax Law: An Introduction seeks to fill. The sort of book that is required must be an updated text which provides a basic overview and, at the same time, is portable and can fit into a briefcase!
Climate Talk: Rights, Poverty and Justice, Jackie Dugard, Asunción Lera St Clair & Siri Gloppen (Eds.) : book reviewAuthor Jan GlazewskiSource: South African Law Journal 131, pp 942 –945 (2014)More Less
Global climate change is 'unequivocal'. This is the central finding of the comprehensive and authoritative Intergovernmental Panel on Climate Change, in both their 2007 and 2013 Fourth and Fifth Assessment Reports respectively (see Working Group 1 'The physical basis - Summary for policymakers' available at http://www.ipcc.ch/organization/).
Author Raymond KoenSource: South African Law Journal 131, pp 946 –948 (2014)More Less
This is the latest edition of one of the leading criminal law textbooks in South Africa. It is available as both a printed book and as an e-book. The third edition dates back to 2005, making this edition a timely re-presentation of the text. Despite being some 100 pages shorter than its predecessor, this edition remains a voluminous offering. However, the length of the book is a function of its comprehensiveness. Certainly, no other criminal law textbook surpasses its ambit and ambition.